10 September 2016

'Academic dishonesty amongst Australian criminal justice and policing university students: individual and contextual factors' by Li Eriksson and Tara Renae McGee in (2015) 11(5) International Journal for Educational Integrity comments

Over the past few decades, a body of research has developed examining the academic dishonesty of university and college students. While research has explored academic dishonesty amongst American criminal justice and policing students, no research has specifically focused on investigating the dynamics and correlates of academic dishonesty amongst Australian criminology students. This study drew upon data obtained from a survey of 79 undergraduate criminal justice and policing students studying at an Australian university. Overall, the results suggest that male gender, viewing academic dishonesty as less serious and holding justifications for engaging in this type of behaviour were significant predictors of self-reported academic dishonesty. The findings suggest that more proactive strategies need to be implemented by universities to prevent student involvement in academic dishonesty.

The authors argue that

Empirical research has shown that academic dishonesty among students is both a prevalent and growing problem in colleges and universities around the world (Allen et al. 1998; Hrabak et al. 2004; Lambert and Hogan 2004; Marsden et al. 2005; McCabe et al. 2008; McCabe and Trevino 1996). In addition to demonstrating the prevalence of academic dishonesty, studies have shown that there are many individual characteristics and contextual factors that may underpin the prevalence of academic misconduct (Lambert and Hogan 2004; McCabe et al. 2001; Whitley and Keith-Spiegel 2002). Research further shows that prevalence rates and predictors may differ across disciplines (Iyer and Eastman 2006; Lambert and Hogan 2004). It is particularly important to examine correlates of academic dishonesty among criminal justice and policing students, as those students convicted of academic dishonesty charges may face significant barriers to employment within legal, criminal justice and policing agencies that may require disclosure of academically dishonest behaviour as part of their staff recruitment processes.

In Australia, several studies have been conducted on the dynamics of academic dishonesty across a range of academic disciplines (e.g. Brimble and Stevenson-Clarke 2005; Marsden et al. 2005; Ogilvie and Stewart 2010). While research has been conducted on academic dishonesty amongst criminology students in the United States (Coston and Jenks 1998; Eskridge and Ames 1993; Lambert and Hogan 2004; Tibbetts 1998), to date no research has been conducted on academic dishonesty within the specific context of Australian university students within criminal justice and policing disciplines. This is unfortunate, as data from other countries with different socio-historical contexts may not be directly generalizable to the Australian context (Brimble and Stevenson-Clarke 2005). In addition, given the significant focus on misconduct and corruption within policing and criminal justice agencies in Australia as a result of government enquiries (see Lewis et al. 2010), the lack of research into unethical conduct among policing and criminal justice students in Australia is surprising. Although Australia currently ranks among the top 20 ‘cleanest’ countries in the world in terms of perceived levels of public sector corruption (Transparency International 2014), the history of corruption and misconduct in Australia warrants the need to examine academically dishonest behaviour within the cohort of future policing and criminal justice professionals.

Academic dishonesty has a range of negative effects both at the institutional and individual level (Brimble and Stevenson-Clarke 2005; Clement 2001; Marsden et al. 2005; McCabe and Trevino 1993). At the institutional level, student involvement in academic dishonesty has clear potential to diminish the reputation and integrity of universities and can also threaten the economic viability of universities situated within competitive educational markets (Brimble and Stevenson-Clarke 2005; Marsden et al. 2005). Academic dishonesty also hinders the ability of universities to ensure that students who complete degrees have the knowledge and skills they require for employment or for further study (Brimble and Stevenson-Clarke 2005). At the individual level, negative effects of cheating include non-cheating students being put at a potential academic disadvantage to students who engage in academic dishonesty (McCabe and Trevino 1993). In addition to this, engagement in academic dishonesty has been linked to increased acceptance of unethical workplace behaviour (Lawson 2004; Nonis and Swift 2001), suggesting that academic misconduct may continue post-graduation. This potential continuation of unethical conduct is, of course, particularly relevant for future police and criminal justice professionals, given that their discretionary powers may have extensive impact on the lives of the client groups with which they come into contact.

The current study builds new knowledge and adds to the evidence base on academic dishonesty in a number of ways. Firstly, it examines the prevalence and predictors of academic dishonesty amongst Australian policing and criminal justice students. Secondly, it highlights a range of recommendations that academic faculties can implement in order to better prevent academic dishonesty behaviours. Thirdly, it adds to the current theoretical understanding of academic dishonesty. ...

A central focus in much of the academic dishonesty research has been to explore the individual characteristics of those students who are most likely to engage in academic dishonesty. Researchers have often hypothesised that the characteristics of students most likely to engage in academic dishonesty include being male and being from a non-English speaking background (e.g. Marshall and Garry 2006; McCabe and Trevino 1997). Many studies have found that male gender is a statistically significant predictor of higher likelihood of involvement in academically dishonest behaviour (Jensen et al. 2002; Kremmer et al. 2007; McCabe and Trevino 1997). Males’ involvement in academic dishonesty may be explained by the gender role conflict that occurs when males are socialised into traditional roles of masculinity, underpinned by expectations of success manifested as persistent worries about personal achievement, competence, failure and career achievement (Cournoyer and Mahalik 1995; O’Neil et al. 1995). A meta-analysis conducted by Whitley et al. (1999) examining gender differences in attitudes toward and engagement in academic dishonesty found that women held significantly higher negative attitudes towards cheating than men. Results further showed that men were more likely to engage in academic dishonesty, although these gender differences were associated with a relatively small effect size. However, other studies have found no gender differences (Diekhoff et al. 1996; Roig and Caso 2005).

In contrast to these findings on gender, some more consistent results have emerged regarding the degree to which ethnicity or being from a non-English speaking background is predictive of academic dishonesty. Research has found that students from a non-English speaking background are more likely to engage in academic dishonesty (Marshall and Garry 2006) and that non-White criminology students report higher levels of academic dishonesty (Lambert and Hogan 2004). One explanation for this may be that students from minority backgrounds, particularly those with weaker English language skills, may perceive academic life to be more stressful and feel less able to cope with academic expectations compared with other students (Wan et al. 1992). Nonetheless, there is some research to suggest that while international students are more likely to cheat on exams, they are less likely to engage in academically dishonest practices in written assignments (Kremmer et al. 2007), suggesting that there may be variations among types of academic dishonesty.

In addition to the research into the individual factors that predict academic dishonesty, researchers have also stressed that there are contextual issues that are essential to examine in the ongoing development of strategies to reduce the prevalence of academic dishonesty (Jordan 2001; McCabe and Trevino 1993). These include motivational factors, perceived seriousness and peer involvement. In addition to these factors, from a deterrence perspective certainty of detection/punishment and severity of punishment may also be important factors in explaining academic dishonesty (Ogilvie and Stewart 2010; Paternoster 1987). However, these factors are not the focus of the current study. ...

They go to comment

The primary aim of this study was to explore the predictors of academic dishonesty amongst a sample of criminal justice and policing students enrolled at an Australian university. Drawing upon data obtained from a questionnaire, the results suggest that male gender is an individual characteristic predictive of higher involvement in academic dishonesty. This is consistent with research from Australia and other countries (Jensen et al. 2002; Kremmer et al. 2007) as well as research on criminal justice students (Lambert and Hogan 2004). The results further suggest that considering academic dishonesty to be justified under certain circumstances is predictive of academic dishonesty engagement. This is consistent with previous research, which shows that students report a number of motivations and justifications for engaging in this type of behaviour (Brimble and Stevenson-Clarke 2005; Jensen et al. 2002). In addition, the results show that viewing academic dishonesty as less serious is a contextual factor predictive of academic dishonesty, similar to other research findings (Bolin 2004; Tibbetts 1998). Thus, based on the results of the current study and the research literature, it appears as though the predictors of academic dishonesty are relatively similar for the sample of Australian criminal justice and policing students used in the current research and university/college students from other disciplines and countries.

Nonetheless, a couple of interesting findings were observed. First, perceptions of peer engagement in academic dishonesty was not found to be predictive of student behaviour in the current study, despite the research literature frequently reporting peer behaviour as one of the main predictors of academic dishonesty (Brimble and Stevenson-Clarke 2005; McCabe and Trevino 1997; Tibbetts 1998). One speculative explanation for this may be that criminal justice and policing students are not influenced by peer behaviour to the same extent as students in other disciplines but this requires further research. One existing study suggests that this is not the case; criminal justice students were more strongly affected by peer behaviour compared with non-criminal justice students (Tibbetts 1998). Another explanation may be that the internalisation of perceived social norms is more influential than the actual behaviour displayed by peers. Thus, exposure to peer behaviour may instil a belief system condoning the use of dishonest behaviour in academic settings (e.g. Akers 1998), suggesting that the influence of peer involvement may be indirectly linked to behaviour through the mediating effect of attitudes. Further research is needed to examine these potential explanations.

In addition, language background was not found to be predictive of engagement in academic dishonesty in the current study, despite prior research suggesting it might be (Marshall and Garry 2006). There may be a simple explanation for this. Rather than measuring English language proficiency the current study examined whether or not respondents came from an English-speaking background. However, having English as a second language does not necessarily equate to low English proficiency. Rather, a range of individual and contextual factors has been shown to influence second language acquisition (e.g. Ellis 1997). As most Australian universities require a certain level of English competency for admission to their academic courses/degrees (e.g. overall IELTS band score of 6.0, indicating a competent user), it may be that the language skills in the current sample were moderately high despite some respondents coming from non-English speaking backgrounds. Since it has been suggested that students with weaker English skills are less likely to cope with academic expectations and experience higher levels of academic stress than other students (Wan et al. 1992), future research will need to examine further whether level of English proficiency is predictive of academically dishonest conduct.

Several policy implications flow from the findings of this research. The findings support the continuation of existing policies as well as the development of new ones. Importantly, faculties offering criminology, criminal justice and policing degrees should implement a range of practical strategies in order to prevent academic misconduct and its associated effects on individuals, the student body and university institutions. In particular, universities need to develop strategies to ensure students understand that academic dishonesty is a serious form of misconduct, and that the university is undertaking steps to detect academic dishonesty. The results of this research suggest that students are more likely to engage in academic dishonesty if they view it as a less serious form of academic misconduct. This is consistent with theories proposing that individuals who hold antisocial attitudes are more perceptive to engaging in delinquent behaviour when the opportunity to do so arises (e.g. Farrington 2005). Other research has found lower acceptability of cheating and plagiarism to be predicted by students’ understanding of academic dishonesty policies (Kuntz and Butler 2014). Thus, one means to address students’ lenient attitudes would be to increase their awareness of university policies on what constitutes academic dishonesty.

However, although the current sample was drawn from a university that actively publicises institution-wide rules relating to the standards of academic integrity, results from other research suggest that some students are not aware of university policies regarding dishonesty (Jordan 2001). This is concerning because it may be that some students are unknowingly engaging in acts that constitute academic dishonesty. There are a number of effective ways to promote student awareness of academic integrity policies, including ensuring that information is made easily accessible online through a centralised university website (Bretag et al. 2011b). However, research examining online academic integrity policies within Australian universities suggests that this is not always achieved, as several policies often co-exist and are sometimes not up-to-date (Bretag et al. 2011b). In addition, teaching staff should also place emphasis on providing students with examples of what constitutes academic dishonesty within the classroom setting and may for example convene specific sessions with students on these issues (Blum 2009). These sessions may not only assist by providing students with better knowledge of policy but also provide an opportunity for policy improvement as students could be asked for constructive feedback on whether they view existing policies as effective or fair and for their views on ways in which policy could be improved (Blum 2009).

Another way that many universities currently convey the seriousness of academic dishonesty to students is through the imposition of penalties ranging from a reduced grade to expulsion from a degree program. Although not explicitly examined in the current study, penalties enforced against students for academic dishonesty may serve a deterrent function (McCabe and Trevino 1997; Michaels and Miethe 1989). The theoretical argument is that perceptions of the certainty of detection and severity of punishment serve as deterrents for students to engage in academic dishonesty (Paternoster 1987). However, research has generated mixed results, with some finding an effect of severity (McCabe and Trevino 1993), some finding an effect of certainty but not severity (Nagin and Pogarsky 2003), and others finding no effect for either construct (Cochran et al. 1999) on academic dishonesty.

Thus, the publication and administration of penalties should not be the sole means by which students are alerted that academic dishonesty is a serious form of misconduct that has consequences. In fact, Roberts-Cady (2008) notes that by implementing such policies, faculties are merely manipulating student behaviour as opposed to addressing students’ ethical decision making. Instead, faculties should focus more attention on increasing moral development through incorporation of moral philosophy and ethical discussion into the curriculum (Davis et al. 2009; Roberts-Cady 2008). Yet, only one-third of universities in Australia have developing student integrity as their main focus (Bretag et al. 2011a). There is some evidence to suggest that including ethics components into university degrees reduces illicit collaborations between students (Reisenwitz 2012). The inclusion of ethics into the curriculum would convey to students that academic dishonesty is not only serious because it results in penalties that can jeopardise future study and employment, but also that it represents unethical behaviour toward other students and the university. Consistent with Kohlberg’s theory of moral development, the incorporation of moral education in the academic curriculum provides students with the scaffold with which to progress to higher levels of moral reasoning (Kohlberg and Hersh 1977). Furthermore, Wikström et al. (2012) argue that people’s moral actions are action alternatives that operate in a particular situation. A situation that discourages academic dishonesty via well established moral norms against academic dishonesty and enforcement of these norms is more likely to lead to individuals engaging in actions in line with these norms. The development of moral reasoning is particularly relevant for criminal justice and policing graduates, since they may exercise a large amount of discretionary powers as part of their prospective work roles.

University efforts to prevent academic dishonesty should further place emphasis on trying to break down student beliefs that academic dishonesty can be justified. According to neutralisation theory, individuals who would normally experience guilt when engaging in delinquent behaviour can effectively ‘neutralise’ this guilt by engaging in a number of methods, such as denying responsibility and denying that any injury has been caused (Sykes and Matza 1957). Consistent with previous research (e.g. Brimble and Stevenson-Clarke 2005), the results of the current research suggest that a substantial number of students viewed academic dishonesty as justified because of time pressure, fear of failure, or in order to pass a course. To circumvent these neutralisations it is necessary: to provide cognitive-based approaches for students; for students to accept responsibility; and to neutralise the neutralisations (adapted from Maruna and Copes 2005). One way of providing cognitive-based approaches and encouraging students to accept responsibility would be for universities and academic staff to make greater efforts to link students to sources of support within the university. For example, where possible, students could be informed by academic staff that they can access student counselling services on campus in order to manage course related stress and anxiety, a potential motivational factor for cheating. Furthermore, to minimise risk of academic misconduct, students who are suffering time pressures and work long hours in paid employment should be encouraged to attend time and study management courses that aim to increase student productivity. Advertising is another measure that could also be implemented to reduce student perceptions of academic dishonesty as justified (i.e. as a means of neutralising the neutralisations). This includes using specifically developed websites, campus posters and pamphlets that identify the most commonly used neutralisations. These advertisements should convey to students that academic dishonesty is never justified on the basis of these neutralisations. Furthermore, it should be made clear that it is unethical and that there are negative consequences of academic dishonesty for individuals, the student body and university institutions.

09 September 2016

'Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation by Masa Galič, Tjerk Timan and Bert-Jaap Koops (Tilburg Law School Research Paper No. 13/2016) aims

to provide an overview of surveillance theories and concepts that can help to understand and debate surveillance in its many forms. As scholars from an increasingly wide range of disciplines are discussing surveillance, this literature review can offer much-needed common ground for the debate. We structure surveillance theory in three roughly chronological-thematic phases. The first two conceptualise surveillance through comprehensive theoretical frameworks, which are elaborated in the third phase.

The first phase, featuring Bentham and Foucault, offers architectural theories of surveillance, where surveillance is often physical and spatial, involving centralised mechanisms of watching over subjects. Panoptic structures function as architectures of power, not only directly but also through (self-)disciplining of the watched subjects.

The second phase offers infrastructural theories of surveillance, where surveillance is networked and relies primarily on digital rather than physical technologies. It involves distributed forms of watching over people, with increasing distance to the watched and often dealing with data doubles rather than physical persons. Deleuze, Haggerty and Ericson, and Zuboff develop different theoretical frameworks than panopticism to conceptualise the power play involved in networked surveillance.

The third phase of scholarship refines, combines, or extends the main conceptual frameworks developed earlier. Surveillance theory branches out to conceptualise surveillance through concepts such as dataveillance, access control, social sorting, peer-to-peer surveillance, and resistance. With the datafication of society, surveillance combines the physical with the digital, government with corporate surveillance, and top-down with self-surveillance.

08 September 2016

The New Zealand Chief Ombudsman's December 2015 report Not a game of hide and seek: Report on an investigation into
the practices adopted by central
government agencies for the
purpose of compliance with the
Official Information Act 1982 comments

The Official Information Act 1982 (OIA) is a key tool and safeguard in New Zealand’s
democracy. The Court of Appeal stated ‘the permeating importance of the Act is such
that it is entitled to be ranked as a constitutional measure’. It established the principle that
official information held by government agencies shall be made available to the public
unless there is good reason for withholding it. It expressly stated that the purposes for
doing this were to:

progressively increase the availability of official information to enable more
effective participation, promote accountability and enhance respect for the law
and promote the good government of New Zealand; and

protect official information to the extent consistent with the public interest and the
preservation of personal privacy.

My Office was appointed Parliament’s independent watchdog on the operation of the
OIA when it was passed on 17 December 1982, and has investigated complaints about
government OIA decision-making for almost 33 years. In recent times I have been aware
of growing public concern and criticism about practices that were perceived to have
developed within government agencies when dealing with requests for information.
This has the potential to erode public trust and confidence in both the effective
operation of the OIA and the integrity of our democratic institutions.

Over the past year, I have carried out a comprehensive review of the operation of the
OIA with the assistance of 12 selected government agencies. I considered how they
were led, organised and allocated their resources. I reviewed their policies, systems,
practices and I considered the environment in which they operate, and how the public
viewed their ability to obtain information from them.

I also considered my Office’s role as Parliament’s independent watchdog on access to
information decisions. This review was conducted using my powers under section 13(3)
of the Ombudsmen Act 1975 (OA). This provides an Ombudsman with the tools needed
to conduct such investigations, but does have two key limitations in the context of the
operation of the OIA: the Police are to all intents and purposes excluded from my OA
jurisdiction, and I also cannot investigate the actions of Ministers and their officials under
this Act. I can, and do, investigate the decisions of the Police and Ministers under the OIA
in relation to individual requests for information.

Overall, I found the OIA has caused greater openness and transparency about the
plans, work and activities of the Government and increased the ability of the public to participate in the making and administration of New Zealand’s laws and policies. It has also led to greater accountability in the conduct of public affairs. The principle
and purposes of the OIA remain sound. I found that most of the time, agencies were
compliant in the way they operated the OIA on a daily basis. However, there were five
key areas where I found there to be increasing risks and vulnerabilities in the way the
OIA was being administered in the current environment. These need to be addressed in
order to protect the effectiveness of this constitutional measure, and ensure it achieves
its purposes.

Leadership and culture

Achieving the purposes of the OIA depends largely on the attitudes and actions of
those in leadership ie, Ministers, chief executives and senior managers within agencies.
When it is clear to staff that leaders respond to requests for official information
positively and view it as an opportunity to operate in a more transparent, engaging and
accountable manner, they will do the same.

I found government agencies were receiving mixed messages from Ministers as to
their expectations in terms of compliance with the OIA and more generally with the
promotion of openness and accountability and enhanced public engagement. This has
enabled doubt and suspicion to grow amongst the public as to whether their requests
for access to official information will be treated appropriately and in accordance with the
law by Ministers and their agencies. It is important that this is corrected.
I found chief executives and officials holding senior leadership positions within agencies
did understand their legal obligations and were committed to the principle and
purposes of the Act. They understand the benefits to their agency of becoming more
open and transparent and some are actively taking steps to ensure they foster such a
culture within their organisation by incorporating them into their vision, values and code
of conduct. Lack of awareness and understanding at their level would therefore not
seem to be a reason for any non-compliance occurring within agencies.

However, over 40% of the current and former government workers who responded
to my survey advised that they did not know whether their chief executive or senior
managers have a ‘pro-disclosure’ attitude towards the release of information. While
many believed that the internal culture of openness and access to information had
improved within their agency, there was a distinct lack of bold, visible messaging by
agencies’ senior leaders to their staff. I also found many agencies did not have basic
information on their websites as to how the public could make a request and the types
of information they can ask for.

For most agencies, providing information to the public is still seen mostly as a reactive,
operational task rather than a planned strategic intention that will benefit other
areas of the agency’s work. Without a strategic framework in place with associated
responsibilities and accountabilities at executive level, making requests under
OIA remains a key vehicle for the public to obtain access to information about the
government’s activities. On one level, this is no bad thing, since people are always likely
to want to access information that those working in government have not considered
useful or important to publish. But on another, the absence of such frameworks indicates agencies will continue to be concerned with managing demand rather than
introducing supply-side improvements that are likely to provide greater value for money
in the long run.

I did observe a growing desire within agencies to push more information about their
work and activities out into the public domain and assist requesters with providing
access to valuable data on a regular basis. Many agencies were routinely publishing
a lot of their corporate information, statistics and data voluntarily, although this was
quite variable. Some agencies were deliberately choosing to provide more information
to requesters than had been asked for. A number of agencies were publishing their
responses to OIA requests on their website so that others could also read them. This
was primarily done to provide the requester (and the public) with context and prevent
misunderstanding or misinterpretation of the information and/or the agency’s activities.
These steps were often taken on the advice of the ministerial/political advisor.
I found evidence that suggested a small number of ministerial officials were attempting
to limit the scope of requests for official information or change an agency’s proposed
decision for unwarranted reasons. Such attempts were rejected by agency officials and
the final decisions made by the agency were compliant with the OIA. I have alerted
the Prime Minister’s office to this type of engagement occurring, and have received an
assurance that all Ministers and their staff are reminded regularly of their obligations under
the OIA. While I cannot investigate the actions of ministerial/political advisors under the
OA, I have strengthened my Office’s investigation processes to ensure that such instances
are identified and reported and my Office intends to develop a model protocol for all
agencies that will govern their consultations and briefings on OIA requests. Its application
in practice will be monitored and reported on publicly by my Office.

The Ministry of Justice and the State Services Commission (SSC) have OIA leadership
roles which have not been fully realised. They have ascribed this to a lack of resources
and competing priorities. The SSC has provided support to senior officials on an ad-hoc
basis and is currently the lead agency for New Zealand’s membership of the Open
Government Partnership. The Ministry of Justice has established a practitioners’ forum,
developed a number of guides and publishes the Directory of Official Information
biennially. However, my investigation has found a number of areas that agencies are
currently finding challenging which both SSC and the Ministry of Justice could, and in
my view should, provide support, assistance and guidance as an ongoing priority. These
include:

establishing and maintaining effective relationships with Ministers and their
advisers whilst also maintaining the independence required to make their own OIA
decisions;

developing a strategic framework for the proactive disclosure of official
information; and

providing clear, detailed guidance on the information agencies should be
proactively publishing.

Organisation structure, staffing and capability
Government agencies have put in place structures and personnel that demonstrate
they consider responding to OIA requests is part of their core business. The type of
model used to manage OIA requests, and where they were located in an organisation’s
structure, had little effect on the agency’s ability to comply with the Act. Each model
has benefits and risks which needed to be provided for.
Most agencies have set up a separate gateway for the media to make requests for
official information. While this demonstrates a willingness to engage and inform
journalists about the work of the agency, it also presents risks to the agency in terms
of the consistency of decisions (both in terms of content and timing), particularly if
agencies do not have either a unified system for logging requests and enquiries, or
share their logs or registers of requests and enquiries with the officials who dealt with
requests for the same information received via other gateways. In addition, many
requests for information were not being counted as OIA requests and were processed
and responded to outside the agency’s policies and procedures. As a result, agencies
were at risk of not complying with the Act’s requirements or understanding their OIA
workload, true compliance rate and resource requirements.
The responsibility for making decisions on OIA requests was most commonly delegated
to tier 3 managers and above. This had the benefit of successfully leveraging more
resources from the agency’s senior leadership team when compliance became
problematic and ensuring appropriately senior staff could manage any difficulties or
disagreements with the Minister’s office regarding an agency’s proposed response.
Most officials assigned OIA responsibilities within an agency had other duties or
responsibilities to carry out. While this may meet the government’s expectations
of ‘doing more with less’, I found there was an adverse impact on the capacity of an
agency to respond to requests ‘as soon as reasonably practicable’ by expecting officials
responsible for answering OIA requests to also be responsible for other work as well. This
was felt most acutely when an agency did not have resilience arrangements in place for
when these staff were absent, had competing priorities arising from their other work or
there was a sudden flood of requests that needed to be processed.
The level of training provided by agencies to their staff on the OIA varied widely. Most
government agencies (79%) did not require their senior managers (who were often
the decision makers) to undertake any level of OIA training. Many government workers
(60%) who responded to my survey also said they had not received any OIA training
from their agency in over four years. Agencies are therefore vulnerable to unintended
bad habits embedding into practice and decisions being made that may be out of date
with current approaches of the Ombudsman. It can also leave their decision makers
vulnerable to undue influence from those working in Ministers’ offices who may wish to
limit or change their decision for unwarranted reasons.

Internal policies, procedures and systems

While it is not a legislative requirement, nor an assurance that compliance with the OIA
will occur, the Ombudsmen encourage agencies to develop policies and resources to
assist staff to meet the requirements of the OIA consistently. They provide a tailored point of reference to assist staff to undertake their role. I found this to be particularly
important in an agency where a high volume of OIA work exists, staff turnover is an
issue or where the agency is heavily reliant on one or two knowledgeable individuals to
respond to OIA requests.

All the agencies examined in our review had readily accessible policies and procedures
for staff as to how they expected OIA requests to be handled. The same could not be
said for Ministers’ offices, with many simply relying on the OIA itself.
The policies and procedures of the 12 selected agencies involved in this investigation
were reviewed by my Office for accuracy, relevancy and ease of use and understanding.
I found a number of good examples that were suitable for the agency concerned. Most
had templates and checklists to assist officials with processing requests and ensuring
compliance with the OIA’s legal requirements. However, I found there were gaps and
assumptions common in many policies that created vulnerabilities for agencies. These
related to:

• the distinction between an OIA request and a Privacy Act request, a section 23
OIA request for a statement of reasons, and a Part 4 request by a company or other
corporate body asking for information about themselves;

• the number of extensions an agency can make to the time limit for making a
decision on a request;
• managing the time limit for transfers;

• the use of personal mobile devices, text messages and personal email accounts;

• what comprises a reasonable search for information;

• the working day count when requests are received electronically; and

• the application of the Cabinet Manual’s ‘no surprises’ principle.

It was universally accepted by all the agencies assisting me with this investigation that
effective record-keeping and information management policies and systems are vital
enablers for compliance with the OIA. Changes in technology are altering the way
officials carry out their work, including how they create, manage and use information.
It is also changing the expectations of those seeking access to official information. As a
result, most agencies subject to my investigation acknowledged that in respect of their
own systems, policies and procedures:

• they were having difficulty keeping pace with the changes and expectations;

• they did not always enable specific information to be identified and accessed
easily;

• they still stored their information in shared drives or in an out-dated or inadequate
electronic document and records management system; and/or

• they weren’t adequate to support the volume, complexity or breadth of requests
for information they sometimes receive.

I found some agencies were in the process of introducing new information
management strategies, with supporting governance committees, policies and systems aimed at meeting these challenges. But others were still applying a hands-off, self reliant
approach to information management. It was therefore not surprising that agencies
advised that one of their most common difficulties in meeting their obligations under
the OIA was finding and retrieving the requested information.

Most agencies (78%) had no policies in place for the proactive disclosure of information.
As a result, opportunities for publishing information to assist the public’s understanding
of an agency’s work (and reduce suspicion or media speculation) were often missed. In
the absence of policies around proactive disclosure, there is more of a risk that agencies
could release information that:

• contains personal information about an identifiable individual;

• contains commercially sensitive information;

• contains information that was provided to the agency in confidence or is the
subject of a confidentiality agreement;

• harms New Zealand’s international relations, the maintenance of the law or would
otherwise be withheld if requested under the OIA;

• infringes copyright;

• is defamatory; or

• is redacted so significantly as to change its meaning.

Current practices

Theory is one thing, but the effectiveness of the OIA is largely dependent on the
practice of those charged with implementing it on a day-to-day basis within agencies.
Most agencies that provided media with a separate gateway to request information
were vulnerable to not complying with the OIA if their officials suggested that a request
had to be put in writing before it would be processed or they did not provide templates
or scripts for officials to use when refusing requests orally or by email. Similarly, officials
who may have established relationships with stakeholders such as interest groups are
also at risk of failing to comply with the Act by not recognising their OIA obligations
when the group seeks information.

I am not convinced that these instances were a deliberate attempt by agencies to avoid
their obligations under the OIA. Rather, it is more likely to be an unintentional gap in
practice that is more likely to be caused by referring to such requests as media enquiries,
or the relevant officials in less public-facing parts of an agency not understanding their
obligations. These can be addressed by the provision of policies, templates and training,
as well as the clear messages from senior management mentioned earlier.
Many agencies complained about the challenges in responding to broad, wide ranging
and multiple, frequent requests, yet were reluctant to use the tools in the OIA to
manage these.
• Many agencies’ policies required that requests for access to official information made by the media, members of parliament, and political party research units
should be exempt from charging. The OIA does not provide for such an outright
exemption. Agencies are entitled to consider release subject to a reasonable
charge as a means of meeting a request for a large amount of information.
• Many agencies were not inclined to consult the requester and provide them with
assistance to refine their request.
• Some agencies were also reluctant to refuse requests on the basis that the
information could not be made available without substantial collation and
research, even when there seemed to be a reasonable basis for doing so.
Instead, most agencies chose to extend the time limit and try to meet the request, or to
redefine and interpret the scope of the request by themselves.

Requesters confirmed they often had difficulty articulating their request and found it
challenging to refine it appropriately as they didn’t understand how the information was
held. Some would occasionally overcompensate for this by sending in multiple, frequent
requests which differed only slightly from the other requests they had made. This
behaviour could make officials within agencies suspicious of the requester’s motives,
particularly if the requester was from the media or a political party, and rather than
consult the requester they would sometimes choose to redefine or interpret the scope
of the request themselves. While I am satisfied that most of the decision letters I have
seen included details of how the request had been interpreted so the requester could
challenge the interpretation, this practice makes the agency unnecessarily vulnerable to
claims of ‘gaming’ the requester and manipulating the final response to suit a particular
purpose.

I explored why there was a reluctance to use the legitimate tools available to agencies
in the OIA when dealing with the challenges they were facing. I found current practices
were heavily influenced by the current media and political environment agencies
believed they operated in.

Officials in agencies reported that they have experienced what they consider to be
unfair attacks and inappropriate, misleading reporting by media after responses and
official information have been provided. As a result, there was a general perception
that many media requests are not driven by a desire to inform the public properly
on the activities of the government but rather on obtaining a ‘gotcha’ headline and
sensationalising information. The impact of these experiences was not always an
increased tendency for agencies to resort to blanket refusals. Rather, agencies had
become extremely careful as to how the information should be released, with great
consideration often being given as what additional information should be included to
provide context and to enable understanding and informed reporting. Some agencies
have decided to publish their responses on their website after it is released to the media
to mitigate these concerns.

I also found that the political environment in which government agencies operate
and make their decisions has had an impact on how responses to OIAs are prepared
in practice. MMP Governments often require ongoing consultation and negotiation
between coalition partners in order to progress policy and legislative programmes.
Ministers now have ministerial/political advisors, whose role is focused on serving the particular Minister and their priorities and agenda. The Cabinet Manual requires agencies to ‘be guided by a “no surprises” principle’ when briefing their Minister on their operations.
While there is no requirement in the OIA for agencies to advise their Ministers about
requests received and decisions proposed, it does recognise that while the chief
executive is the ultimate decision maker, this does not ‘prevent the Chief Executive ... from
consulting a Minister ... in relation to the decision [they] propose to make.’

While many requesters find this ability of chief executives to consult their Minister on
proposed decisions to be unpalatable, I do not think it is unreasonable for a Minister to
want (and expect) to be made aware of requests that could result in them having to
deal with a controversial or sensitive issue, such as by way of questions in the House or
from the media, if information is released by an agency for which they are responsible.
Indeed, it would be naive to expect or require them not to in the MMP environment. It
would also be naive to expect officials within agencies to disregard the possible political
impact of disclosing information they hold to the public and not advise their Minister.
The Minister’s office may be aware of harms or consequences that could result from
release of the information of which an agency may not be fully cognisant. Compliance
with the OIA does not equate to a requirement that a Minister must be kept unaware
of what their agency is doing when it comes to responding to requests for official
information.

I reviewed a number of interactions between Ministers’ offices and agencies on OIA
requests and interviewed those involved with these consultations to understand and
confirm the practice that occurred within agencies. I found this varied considerably and
there was not in fact a standard practice (apart from the initial consideration of the OIA
request when it was first received as to whether it should be included in the weekly
advice to Ministers). The interpretation certain agencies applied to the ‘no surprises’
principle when preparing responses to requests did make them vulnerable to not
complying with their legal obligations under the OIA.
• Those that believed it required them to seek ‘clearance’ or ‘approval’ from the
Minister on the proposed response to requests for official information would be
abdicating the chief executive’s responsibilities and accountabilities under the OIA
and would therefore be in breach of section 15(4) of the OIA.
• Those that provided the Minister with a copy of the proposed response to an OIA
under the auspices of an ‘FYI’ or ‘no surprises’ 3-5 days prior to advising the requester
of the decision would be in breach of section 15(1) of the OIA as it suggests the
agency is delaying the release of a decision it has made.

If an agency genuinely needs to consult the Minister on its proposed response before
finalising a decision on a request, it should say so - in its policies, its referrals (eg,
consultation email or cover note to the Minister’s office) and its correspondence with the
requester. Purporting to do otherwise creates doubt as to who is making the decision
and whether the final response is being manipulated for political reasons rather than
in accordance with the provisions in the OIA, and suspicion as to whether delays are
occurring for tactical reasons (such as to reduce the newsworthiness of the information).

My investigation found that the Minister’s contribution to an agency’s proposed
response often resulted in:
• enhancements to a proposed response - by encouraging more information about
the government’s activities or position on an issue to be released;
• queries as to the ground for refusal being relied on being appropriate and
suggesting more information could be released than what was being proposed;
• quality assurance on the draft refusal letter by including advice to the requester
they could seek a review by the Ombudsman about the decision; and
• advice being sought as to the media enquiries and communications that would
likely follow as a result of release and suggestions as to proactive release of
additional information in order to ensure the public were informed appropriately.

However, I also saw evidence of ministerial/political advisors using the opportunity they
were given to review the response prior to release under the auspices of an ‘FYI’, to try to
convince the agency to change the final decision the agency had made by seeking to:
• limit the scope of the request;
• alter the decision proposed by the agency; and/or
• reduce the additional contextual information the agency proposed to include in
the response.

A number of the submissions received also described bitter, confrontational discussions
with Ministers and their ministerial/political advisors about certain OIA responses.
My investigation found agencies experiencing this type of interaction rejected those
demands in the final response, unless they considered them valid to incorporate in their
final decision. Other agencies used a number of strategies in order to establish and
maintain a healthy, functioning relationship. In all cases, I found agencies understood
that the chief executive was the decision-maker, and would be accountable for the
decision unless it transferred it to the Minister. None of the chief executives believed
it would be career limiting to stand their ground on OIA responses, although some
observed that it could make for a difficult and challenging relationship with their
Minister.

In principle, I see no reason why a Minister or their advisers should not be informed
of any OIA requests agencies are processing at any stage during that process, so long
as there is no improper pressure or political manipulation of either the substantive
decision or the timing of the delivery of the agency’s response to the requester. The ‘no
surprises’ principle is intended to assist orderly government decision-making and enable
public trust and confidence by ensuring decision-makers are better informed before
making decisions or responding to enquiries and legitimate scrutiny (whether by the
media, opposition parties or citizens). However, if it is applied incorrectly by Ministers
and their officials, the principle may be misused to defeat the proper operation of the
OIA by providing an opportunity for officials to apply improper pressure or political
manipulation to either the substantive decision or the timing of the delivery of the
agency’s response to the requester.

My Office will develop a model protocol for all agencies that governs their consultations and briefings on OIA requests with Ministers’ offices which:
• acknowledges the roles and responsibilities of the Minister and the chief executive
with reference to the guidance in the Cabinet Manual;
• acknowledges that a ‘no surprises’ principle is expected to operate in the
relationship between an agency and its Minister;
• makes the distinction between consultations under section 15(5) of the OIA and ‘no
surprises’ briefings or referrals; and
• requires the outcomes of any consultations to be recorded.

The protocol should be adopted and published by agencies and its application in
practice monitored by my Office regularly. It could also form part of a code of conduct
for ministerial advisers, which the SSC has indicated it is considering.

Performance monitoring and learning

OIA requests, responses and complaints provide a rich source of information that can be
used by agencies to:
• ensure consistency in decision-making;
• understand what the public and key stakeholders are really interested in (and
where proactive release could be used to reduce an agency’s workload);
• flag any stakeholder/third party relationship issues that might be occurring;
• identify where business units may be struggling or under pressure;
• inform management decisions and budget bids regarding internal resource
allocation, training needs and system improvement requirements;
• flag any compliance issues and gaps in any policies and procedures; and
• fast track and inform any Ombudsman investigations and reviews.

However, most agencies had difficulty providing me with information about:
• the amount of staff resources they were applying to respond to OIA requests;
• the number of requests for official information they received (from all access
points);
• who their requesters were;
• the subject matter of requests;
• any consultations involved;
• any transfers or extensions of time needed; and
• the outcome of decisions on requests.

Those agencies that were capturing information and data about their requests for
official information used a variety of methods. The effectiveness of the method used by an agency to track compliance and ensure consistency depends on both the
sophistication of the tool itself and from assigning a sufficiently senior and respected
official to operate it and monitor the agency’s daily management of requests and who
could demand action if the agency was at risk of non-compliance.

I found most agencies had some performance measures for some of their OIA work.
They were usually directly linked to the 20 working day maximum time limit for
responding to requests. Occasionally demand driven quantity measures were included,
but rarely were the quality of responses or proactive disclosures of information
measured. I also found some unusual counting practices occurring in some agencies.
Most only acknowledged OIA requests that were processed in a certain way and did not
include requests for information usually dealt with by their media and communications
team or by other staff. Some included their Minister’s OIA requests, responses to
Parliamentary questions and ministerial correspondence as part of their own agency’s
OIA compliance statistics. Reporting this way means neither the public nor the agency
itself is in a position to recognise the true picture of an agency’s capacity and capability
to carry out its OIA function.

Record-keeping of agencies’ decisions on OIA requests was very sporadic. I found some
agencies recorded neither the decision nor any consultations that occurred during
the process. Such practices are likely to be contrary to the requirements of the Public
Records Act 2005. Failure to keep a record of decisions makes it difficult for other staff
within agencies to locate similar, previous requests, ensure consistency of decisionmaking
or justify departure from past responses. It could also inhibit the ability of
agencies to adequately explain the basis for the original decision to an Ombudsman.
All agencies provided weekly reports to their Minister about some of the OIA requests
they received. This included some media requests and some requests from opposition
parties and special interest groups where it was considered important for the Minister
to be briefed. For many agencies, there was no blanket decision to include all requests
by certain requesters in these weekly reports. Rather, it was a discretion exercised by
officials within the agency as to what the Minister ought to be briefed on.
The level and type of reporting to the agency’s chief executive and senior management
about the OIA requests its agency had on hand was not as consistent or regular as their
reporting to Ministers on the requests received.

Many requesters were frustrated by my Office’s inability to investigate complaints about
decisions of agencies in a timely manner and were concerned that agencies could
be factoring into their decision on withholding information the time it would take an
Ombudsman to investigate a complaint. The perception that this may be occurring is
sufficient to cause a review of my own Office’s practices and ensure its early resolution
processes and proactive investigation capabilities are fully realised.

Conclusion

Following a comprehensive examination of how agencies have organised and
resourced themselves and currently operate in practice, I am satisfied that agencies are
compliant with the OIA most of the time and government officials working within these
agencies have a genuine desire to ensure that they are compliant.

My investigation found that both requesters and agencies have perceptions, biases and
suspicions arising from past poor experiences. I found most agencies were unaware of
the areas where they were vulnerable to non-compliance and were willing to address
these where they could, so as to rebuild public trust and confidence in the operation of
the OIA by their agency. I found requesters who rely on the effective operation of the
OIA within agencies have been confused, frustrated and found it difficult to engage
with agencies at times. Many requesters assumed that an agency’s non-compliance or
lack of engagement was deliberate and intentional, which then created a spiralling cycle
of distrust and suspicion. This has led to increased concern and criticism about how the
OIA is operating.

If the OIA is to achieve its purposes and continue to be effective over time, it needs
to be used properly by everyone – the media, politicians, researchers, special interest
groups and the public, as well as government agencies. Anyone who acts unfairly in
either making or responding to a request can contribute to and encourage a chilling
effect on how the OIA operates in practice.

Most of my recommendations are couched in general terms and address what I believe
are achievable improvements to the way the OIA‘s requirements, principle and purposes
are implemented by agencies to assist themselves and the public and correct any
misconceptions. It is up to each individual agency to examine its own performance
and decide how best to implement these recommendations in light of its own
circumstances.

My Office will continue to work with the 12 selected agencies to ensure any areas of
vulnerability that may have been identified during the investigation of their particular
agency’s practices are addressed appropriately. Other agencies who wish to seek my
Office’s assistance are welcome to contact the Ombudsman’s Policy and Professional
Practice Advisory Group.

In addition, my Office will be issuing new comprehensive guidance and resources for
all agencies to assist them to achieve excellence in their policies, practices, systems,
organisation and decision-making. This will include the development of a model
protocol for agencies and officials to govern consultations and briefings with their
Minister’s office on OIA requests, a maturity model, and a self assessment tool for
agencies to measure their compliance and identify any areas of weakness.

It is my Office’s intention to commence a programme of proactively reviewing agencies’
practices against the requirements of the OIA using the own motion powers under the
OA and publicly report on these. It will also investigate and report on the performance
of the sector overall again, to ensure the public have continuing trust and confidence in
this important constitutional measure.

The Ombudsman makes several recommendations

Leadership and culture

1 The Prime Minister and his Ministers should issue clear, visible statements of their commitment to the principle and
purposes of the OIA and their expectations of their agencies to comply with its requirements.

2 Chief executives and senior managers within agencies should review their policies, value statements, code of conduct
and mechanisms for communicating to their staff, and ensure they contain clear, visible statements of their expectations
that all staff will act consistently with the OIA’s principle, purposes and requirements.

3 Both the SSC and the Ministry of Justice should take steps to fulfil their leadership roles in practice by making it a
priority in their work programmes to assist agencies with the challenges they currently face in complying with the OIA
and its principle and purposes.

4 The Ministry of Justice should develop guidance for agencies (and consider developing a model publication scheme)
on what should be included in the Directory of Official Information that will assist requesters to make effective, targeted
OIA requests to agencies.

5 The Ministry of Justice should publish information about the forums it has held, the planned programme of work for
future forums, and the guidance it has produced for agencies.

6 All agencies should ensure their websites have a page, no more than one click away from the home page, which
provides the public with key information on how to make a request for official information, what the agency’s internal
policies and guides on processing OIA requests are, who to contact for assistance, and the information the agency
supplies to the Ministry of Justice for inclusion in the Directory of Official Information.

7 Agencies should ensure their strategic plans include increasing the agency’s openness and accessibility of information
about its work and activities, and engagement with the public and media.

Organisation structure, staffing and capability

8 Agencies should review their OIA organisational model and ensure any risks are mitigated.

9 Agencies should ensure there is sufficient resilience in their structure to respond to contingencies such as staff
absences, departures, and sudden surges in the number of OIA requests.

10 Agencies who have provided a separate gateway for the media to make requests for official information should ensure
all officials dealing with OIA requests have access to each others’ logs or registers.

11 Agencies should ensure compliance with the OIA is specifically included in all employees’ job descriptions.

12 Agencies should ensure that compliance with the OIA and information management policies is included in key
performance indicators for staff and compliance is monitored and reviewed annually.

13 Agencies should ensure all staff undergo some level of regular OIA and information management training, tailored
appropriately for their role in the agency. This includes:
• those who are ‘on the frontline’ and receive or process requests;
• those who make decisions or recommendations that could affect others which may subsequently result in
requests for access to personal information or for the reasons for a decision; and
• senior managers with delegations to make OIA decisions.

14 Agencies should publicly report on the OIA training their staff have undergone in the last 3 years.

Internal policies, procedures and resources
OIA policies

15 Agencies should review their OIA policies to ensure they provide accurate guidance and sufficient coverage so as to
avoid any gaps or incorrect assumptions that could create vulnerabilities in compliance. They should consider seeking
the assistance of the Office of the Ombudsman when doing so.

16 Agencies should ensure their interpretation of the ‘no surprises’ principle contained in any OIA policy is not characterised
as seeking a clearance or approval by their Minister on an agency’s proposed response to any OIA requests.
Information management policies & systems

17 Agencies should develop and implement an information management strategy (that has OIA compliance and public
participation needs at its core, alongside other business needs of the agency) and ensure they have a senior manager
assigned specific responsibility for its implementation.

18 Agencies should review their information management and record keeping policies to ensure they include guidance on
managing emails and text messages created and received for business purposes, regardless of whether they are held
on an agency-owned or a personal device.

19 Agencies should review their information management systems to ensure they are adequate to meet the needs of the
business, including the need to search for and retrieve records efficiently in order to deal with requests made under the
OIA.

20 Agencies should provide regular training to staff on information management and record keeping policies and monitor
compliance with these policies.

21 Agencies should have redaction software to assist them with preparing information for release in formats enabling easy
reuse of the information.

Proactive release policies

22 Agencies should ensure they have a comprehensive policy concerning the proactive release of information they hold,
which includes how to maximise the benefits of proactive release while also managing risks that may arise from the
release of certain types of information.

Tools and resources

23 Agencies should review their websites and ensure these contain accessible guidance for requesters to assist them when
making requests for official information.

24 Agencies should develop tools and resources for requesters to assist them to make focused requests for official
information.

25 My Office should provide requesters with training, support and guidance in how to make requests for official
information effectively.
26 The Ministry of Justice and the SSC should champion the development of tools and resources by agencies to assist
requesters.

Current practices

27 Agencies should review their practices to ensure that the identity of the requester, their mode of engagement, or any
practices do not impinge on the requirements to make a decision that is appropriate under the OIA and communicate
it to the requester ‘as soon as reasonably practicable’.

28 Agencies should ensure consultation with requesters takes place at an early stage to identify the information being
sought or before refusing to make information available because of the collation and research challenges.

29 Agencies should review their charging policies to ensure that they do not exempt certain types of requesters from the
application of the OIA’s provisions.

30 The Ministry of Justice should review and update its charging guidelines.

31 The Ministry of Justice, in collaboration with the SSC and Archives New Zealand, should develop a model information
search policy for agencies to apply.

32 Agencies should publish their OIA policies including how they interpret the ‘no surprises’ principle and record how they
apply this to individual requests.

33 My Office should develop and publish a model protocol on agencies’ consultations and briefings on OIA requests with
Ministers’ offices, and monitor its application. The development of this protocol should be done in consultation with
the SSC, Cabinet Office, Department of Prime Minister and Cabinet and the Ministry of Justice.

34 The SSC should consider how this model protocol may be linked to a Code of Conduct for ministerial officials/political
advisors.

35 Agencies should review their policies and tools available for staff to ensure they capture the legal requirements for
responding to requests for information that may be received and replied to via email or by phone.

36 Agencies should strengthen their procedures for considering, documenting and explaining to requesters the public
interest factors considered when making a decision whether or not to withhold information under section 9 of the OIA.

Performance monitoring and learning

37 My Office, in consultation with the Ministry of Justice and the SSC, should develop a suite of performance measures for
agencies to apply to their official information activities (including proactive disclosures).

38 Agencies should ensure they are counting their OIA workload and compliance rates accurately.

39 Agencies should separately report on their Minister’s OIAs or PQs or ministerial correspondence rather than in the one
performance measure.
40 Agencies should ensure they have a fit for purpose OIA logging and tracking system which is easy to use and actively
monitored.

41 Agencies should record the final decision on an OIA request and if it is to refuse, the basis for that decision, including
the outcome of any consultations involved.

42 Agencies should ensure their chief executive and senior leadership team receive regular reporting on compliance
capabilities in handling OIA requests, apparent themes or trends in the requests being received, sensitive issues and
proactive disclosures.

43 Agencies should ensure any Ombudsman decisions are shared and discussed openly with OIA practitioners in the
agency.

44 My Office should work with agencies to develop a standardised model for data collection of OIA requests to enable
high quality analysis and compliance.

45 My Office should ensure its early resolution process is implemented and works effectively for the majority of official
information complaints we receive.
46 My Office should provide updated OIA guidance to agencies, and continue to provide training and assistance to
agencies in developing OIA policies and procedures.

47 My Office should develop a maturity model and associated resources based on the findings from this investigation to
enable agencies to self-assess performance and capabilities.

07 September 2016

'Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism' (UCLA School of Law Research Paper No. 16-02) by Douglas NeJaime and
Reva Siegel comments

Those who believe contraception, abortion, and same-sex relationships are sinful are increasingly seeking religious exemptions from laws protecting these practices. This essay examines the spread of these culture-war conscience claims in the United States and across borders.

In the wake of the U.S. Supreme Court’s decision in Obergefell v. Hodges recognizing same-sex couples’ right to marry, government officials have objected to marrying same-sex couples and businesses have objected to providing them goods and services. Opponents of abortion and contraception have also turned to claims of conscience and religious liberty in challenging the Affordable Care Act, as the Court’s recent decisions in Burwell v. Hobby Lobby Stores and Zubik v. Burwell illustrate.

Similar claims of conscience and religious liberty are appearing in Europe. These may involve objections to direct participation in the performance of abortion; or they may involve objections to complicity in the sins of another — for example, to laws that oblige the objector to refer for abortion or to sell contraception. In the LGBT context, there are analogous conscience claims involving direct participation conducting marriages or civil partnerships — as with the government registrar’s objection in Eweida and Others v. United Kingdom — or complicity in another’s sinful conduct — as with the innkeepers’ objection to renting a double-bed room to a same-sex couple in Bull v. Hall.

Religious liberty claims asserted in these culture-war contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal response. When a person of faith seeks an exemption from legal duties to another in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. Complicity-based conscience claims, which have proliferated in conflicts over reproductive rights and LGBT equality, raise special concerns with third-party harm and threaten to undermine a workable system of religious accommodation. Employing cross-borders comparisons to illustrate, we argue that religious accommodation of claims arising in culture-war contexts serves pluralist ends only when the accommodation is structured to shield other citizens from harm.

06 September 2016

The interim report of the Medicare Benefits Schedule (MBS) review taskforce is described as having "successfully reached what might best be described as ‘the end of the beginning’".

The major Taskforce recommendations regarding changes to individual MBS items will be made in the latter part of 2016 and 2017. This Interim Report however describes preliminary outcomes from the work of the early Clinical Committees, including items for which the consensus view was that these services do not have a place in contemporary practice and should not be MBS funded. Those items identified as potentially obsolete are currently being considered by relevant stakeholder groups.

The report states -

The Medicare Benefits Schedule Review Taskforce was established in June 2015 by the Minister for Health, the Hon Sussan Ley MP, following feedback from clinicians and the broader community that certain items on the MBS did not reflect clinical best practice and that the Schedule included anomalies that in some cases were creating distortions in services provided. There was also the broader issue that, some 30 years after its inception, the first thorough review of the MBS was well overdue. The MBS Review commenced in July 2015 with the first meeting of the Taskforce and an initial round of stakeholder consultations, and will continue through to mid-2017.
The rationale for this Review is very clear. The MBS is a key driver of the way health services are delivered into the community. Despite its importance to health outcomes and the sizeable public investment ($20 billion in 2015–16, around 30 per cent of total Commonwealth health expenditure), the MBS has never been subject to a comprehensive review. Yet over this period there have been significant changes in best medical practice. This means there are specific MBS service items which were once appropriate but are now obsolete or of less value, overtaken by more effective treatments solidly backed by evidence. At the same time, many tests and procedures benefit patients but only when provided in the right clinical circumstances. Internationally, there is concern that many interventions provide little of no benefit to very many patients. This low-value care is displacing high-value care.

Furthermore, modern healthcare practice increasingly involves more multidisciplinary care delivered by teams of health professionals, and this service model does not sit neatly with the existing MBS structure.

In the early part of this Review, an extensive analysis of existing research and evidence, national and international was combined with widespread consultation. This involved doctors and other health professionals, public and private health service providers, regulators, data and systems experts, policy makers and commentators, and consumers and patient groups. There has already been a great deal of input from health professionals and from other stakeholders, and this has been invaluable in developing a plan for the next phase of the project. There has been significant engagement with clinicians who have brought their expertise and goodwill to the first reviews of specific MBS items.

Key outcomes to date

• The design of the process by which the Review will be undertaken.

• The Taskforce has held five stakeholder forums, with more than 100 organisations represented. In addition, more than 80 other meetings with stakeholders have been held.

• More than 1,500 surveys and more than 240 written submissions were received in response the consultation paper released in September 2015. Approximately 300 health professionals provided specific examples of low-value and high-value usage through the online survey, as well as examples of potential obsolete items or misuse.

• The establishment of the first five Clinical Committees - Gastroenterology, Ear Nose and Throat, Obstetrics, Diagnostic Imaging, and Thoracic Medicine. These first Committees have trialled the Review methodology.

• Approximately 100 individuals have agreed to participate in the first tranche of Clinical Committees.

• An initial 23 MBS items referred for stakeholder consultation.

• The establishment of a Principles and Rules Committee to review the regulations that underpin the MBS.
• Development of a timeline for establishing Clinical Committees in other disciplines through 2016.

The Review methodology, the processes adopted to support the Review and the guidance given to Committees will be monitored and refined based on the real-world experience of undertaking this complex and highly collaborative project.

The focus of this, the Taskforce’s Interim Report, is on the following key areas:

• The need for review—outlining the critical reasons why the MBS is in need of evidence-based review.

• Methods—outlining the processes the Taskforce is adopting for conducting the Review, which have been tested through stakeholder consultation and early priority reviews.

• Preliminary results and considerations—reflecting on the outcomes of the Taskforce’s initial activities, in stakeholder consultations and other early Review activities.

• Discussion and next steps—identifying a number of areas where there is a need for further consideration of issues raised in the Terms of Reference and the Taskforce’s early activities.

• A provisional work programme for 2016—identifying the key priorities for the Taskforce in 2016.

The report notes

The Taskforce is committed to providing recommendations to the Minister that will allow the MBS to deliver on each of these four key goals:

1. Affordable and universal access—The evidence demonstrates that the MBS supports very good access to primary care services for most Australians, particularly in urban Australia. However, despite increases in the specialist workforce over the last decade, access to many specialist services remains problematic with some rural patients being particularly under-serviced.

2. Best practice health services—One of the core objectives of the Review is to modernise the MBS, ensuring that individual items and their descriptors are consistent with contemporary best practice and the evidence base where possible. Although MSAC plays a crucial role in thoroughly evaluating new services, the vast majority of existing MBS items pre-date this process and have never been reviewed.

3. Value for the individual patient—Another core objective of the Review is to have a MBS that supports the delivery of services that are appropriate to the patient’s needs, provide real clinical value and do not expose the patient to unnecessary risk or expense.

4. Value for the health system—Achieving the above elements of the vision will go a long way to achieving improved value for the health system overall. Reducing the volume of services that provide little or no clinical benefit will enable resources to be redirected to new and existing services that have proven benefit and are underused, particularly for patients who cannot readily access those services currently.

Broadly, the Taskforce’s focus is on reviewing the existing MBS items, with an initial emphasis on ensuring that individual items and usage meet the definition of best practice. Within the Taskforce’s brief there is considerable scope to review and advise on all aspects which would contribute to a modern, transparent and responsive system. This includes not only making recommendations about new items or services being added to the MBS, but also about a MBS structure that could better accommodate changing health service models.

The Taskforce has made a conscious decision to be ambitious in its approach and seize this unique opportunity to recommend changes to modernise the MBS on all levels, from the clinical detail of individual items, to administrative rules and mechanisms, to structural, whole-of-MBS issues. ... Like all parts of the health system, the use of MBS services is growing and at a rate that exceeds population growth. Overall, service volumes increased by almost 20 percent between 2009–10 and 2014–15—from 307.9 million services to 368.5 million—and by over 50 percent since 2004–05. More significantly, per capita use of services has also increased over time, growing from 11.7 services in 2004–05 to 15.4 services in 2014–15, with 89 per cent of the population accessing MBS services.
As expected, the number of services per capita is much higher in the oldest age groups compared to younger cohorts .... The per capita use of MBS services in older people is also growing at a faster rate than for younger people. In the over 75 year age cohort, per capita use of services increased from 25.9 to 41.3 between 2003–04 and 2014–15. Figure 1 also shows that even for younger age groups the average number of services per capita is rising.

The Bettering the Evaluation and Care of Health (BEACH) report A decade of general practice: 2004–05 to 2013–14 shows the following breakdown of actions taken by GPs in managing their patients’ problems. In 2013–14, for every 100 patient encounters, there were:

This shows not only that referral and requesting behaviour has increased across all these categories, but that one or more of these actions are taken in around 75 per cent of attendances (up from around 55 per cent in 2004–05).

There has been an increase in the proportion of the population that receives a Medicare pathology test annually, up from 46 per cent in 2003–04 to 54 per cent in 2013–14, with the number of pathology services per capita increasing from 3.7 to 5.4 in the same period. The proportion of the population that has a diagnostic imaging service has also increased to 37 per cent from 30 per cent in 2003–04, with the number of services per capita increasing from 2.2 to 2.6.

MBS data can be a useful tool for raising questions about services being provided. Growing utilisation, in the absence of changes in patient need, can be a prompt to consider whether clinically useful items or services are being provided.

The NSW Government has announced that it will seek to criminalise 'revenge porn' (ie the distribution of intimate or sexually explicit images without consent).

The media release, which embodies the Government's rather weak response to the privacy inquiry by the Legislative Council Committee on Law and Justice, features the comment by Attorney-General Upton that

distributing intimate images without consent often involves ex-partners seeking revenge and is particularly troubling in domestic violence situations, where a victim may be forced to participate in the production of explicit images.

It goes on to state

“‘These images can have a devastating emotional and social effect on the person pictured and can be used as a way to deliberately humiliate, control or harass the intended victim,” Ms Upton said.

“No one has the right to share explicit photos without consent, and new laws will protect people and make it clear this kind of behaviour is totally unacceptable.

”The use of mobile phones as recording devices has made it easier for people to share intimate images without consent on social media or websites, causing great distress for victims, and we need strong laws to protect them.”

The decision reflects the NSW Government’s recognition of concerns about privacy recently expressed by the Legislative Council Committee on Law and Justice and is part of the Government’s response to the Committee’s report on remedies for serious invasions of privacy, which will be tabled today.

Only Victoria and South Australia make distributing intimate and sexually explicit images without consent a criminal offence. In Victoria the offence carries a penalty of up to two years in prison, while in South Australia the maximum penalty is $10,000 or two years in jail.

Consultation will start soon on a range of issues, including the definition of “intimate” images, how they are shared or distributed, and what penalties should apply, including how the offence should apply to children and young people.

04 September 2016

In announcing 'A new approach for determining eligibility from 1 July 2016' the Tasmanian Government earlier this year stated that it

has changed its approach for determining eligibility for Aboriginal and Torres Strait Islander programs and services to be more consistent with the Australian Government’s approach.

Like the Australian Government, the Tasmanian Government uses a three part test to determine eligibility for Aboriginal and Torres Strait Islander programs and services.

The three part test requires a person to:

have Aboriginal and/or Torres Strait Islander ancestry, and

self-identify as an Aboriginal person and/or Torres Strait Islander, and

be recognised as an Aboriginal person and/or Torres Strait Islander by the Aboriginal and/or Torres Strait Islander community in which they live or have lived.

Under the state's changed approach to determining eligibility:

Tasmanian Government Aboriginal and Torres Strait Islander programs and services which only require self-identification will continue to only require self-identification.

Other Tasmanian Government Aboriginal and Torres Strait Islander programs and services will require applicants to complete an eligibility form. The form includes a statutory declaration that the applicant meets the three part test and a statement of communal recognition from an Aboriginal organisation.

People found to be eligible under the previous Tasmanian Government Policy on Eligibility for Aboriginal and Torres Strait Islander specific programs and services are not required to complete the eligibility form to access Tasmanian Government Aboriginal and Torres Strait Islander programs and services.

Eligibility to participate in the use and management of Aboriginal land under the Aboriginal Lands Act 1995 will be considered at a later stage as part of a broader review of the land return model.

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The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.